Tag Archives: Jay Bybee

After Hillary Clinton won the popular vote by about 2 million votes but lost in the Electoral College count 290-232, Reid told reporters Wednesday, “I think it would be educational for the country to have some hearings on the Electoral College system. … So I think it’s something we should look at, absolutely.”

Sen. Barbara Boxer, D-Calif., filed a bill Tuesday to abolish the Electoral College. In the unlikely event Congress were to pass the bill, amending the Constitution still would require agreement by three-fourths of the state legislatures.

According to The Hill, Trump, who seldom misses an opportunity to waffle on any issue, called the Electoral College “genius” on Tuesday morning, though in a a Sunday “60 Minutes” interview he said, “I’m not going to change my mind just because I won,” the president-elect said. “But I would rather see it where you went with simple votes. You know, you get 100 million votes and somebody else gets 90 million votes and you win.”

Barbara Boxer with Hillary Clinton (Reuters photo)

For Nevada voters dumping the Electoral College system would mean the state’s collective voting strength would drop from six to four.

The electoral college system was set up to give smaller states like Nevada an outsized voice in the presidential election. In a proportionate system, Nevada would have only four votes, one for each member of the House of Representatives, which is divvied up by population. But Nevada gets two extra votes, one for each senator.

Similarly, instead of having only one vote, Wyoming, Montana, Alaska, the Dakotas and a couple of others get three.

When the Constitution was written the states were intended to be sovereign entities, conducting the affairs within their borders, while the federal government would handle those enumerated duties beyond the scope or power of the individual states, such as defending the country from invasion and regulating interstate commerce.

Over the years the federal government has usurped more and more powers never envisioned by the Founders. Congress — using the carrot and stick of federal funding — dictates to states what the legal drinking age will be, what the highway speed limits will be, what education standards should be attained and whether to expand Medicaid, among many, many other things.

If Harry wants to consider some hearings on a constitutional amendment that would be educational for the country, he should call for hearings on repealing the 17th Amendment, which in 1913 changed the election of U.S. senators from selection by state legislatures to a popular vote.

Since then the Congress has treated the states like fiefdoms over which it holds indomitable power.

James Madison said during debate over the Bill of Rights, “The state legislatures will jealously and closely watch the operations of Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of people’s liberty.”

George Mason warned when the Constitution was being drafted in Philadelphia, “(W)e have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …”

The delegates agreed unanimously.

But in a fit of progressive pique this common sense check against unbridled power was overturned by the 17th.

In 1997 Nevada’s own Jay Bybee, a former constitutional law professor at UNLV and now a judge on the 9th U.S. Circuit Court of Appeals on the recommendation of Harry Reid, penned an article railing against the 17th Amendment’s alteration of the country’s power structure:

“The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.”

If Harry wants to dabble with the Constitution, he should look to the 17th Amendment, not the Electoral College.

Like this:

We managed to repeal the 18th Amendment, which created Prohibition. It is time to repeal the 17th.

What? You have no idea what the 17th Amendment is? Well, it is the one that effectively ended federalism by taking the power to appoint U.S. senators from state legislatures and having the citizens directly elect them, as they had always done with the House of Representatives.

We may not get better senators, but it is likely they would not try dictate to the states what they should do — as they did when they set the national speed limit at 55 mph and the drinking age at 21, under threat of losing highway funding. No Child Left Behind dictates education standards under threat of losing funding. The Motor Voter Law told states how to register voters, as recounted in this week’s newspaper column available online at The Ely Times and the Elko Daily Free Press.

ObamaCare threatened federal funding if states did not expand Medicaid and set up exchanges, until the Supreme Court decided that was too onerous.

James Madison said during debate over the Bill of Rights, “The state legislatures will jealously and closely watch the operations of Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of people’s liberty.”

There was a grand design to balance power, but that was broken in 1913 with the passage of the 17th Amendment.

George Mason warned when the Constitution was being drafted in Philadelphia that the Senate had to represent the states lest the federal government “swallow up the state legislatures.”

Mason argued to the delegation, “(W)e have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …”

The delegates backed him unanimously.

Justice Antonin Scalia in 2010 at Texas Tech University Law School was asked what he would change about the Constitution.

Scalia added, “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”

That’s how we got FDR’s New Deal.

Then there is the argument put forward by Nevada’s own Jay Bybee, former William Boyd Law School constitutional law professor at UNLV and now judge on the 9th U.S. Circuit Court of Appeals on the recommendation of Nevada’s senior senator, Harry Reid.

In 1997 Bybee penned an article for the Northwestern University Law Review titled “Ulysses at the Mast: Democracy, Federalism, and the Siren’s Song.” In Greek mythology, beautiful sirens lured sailors with their music and voices to shipwreck on the rocky coast of their island.

Bybee wrote of the passage of the 17th Amendment with a rhetorical flourish:

“Mason wished to provide some mechanism for states to defend themselves against ‘encroachment’ by a national government that everyone recognized would have significantly more power than any American sovereign since July 3, 1776. A senate appointed by state legislatures would be a near-complete defense to national encroachment because the senate controlled one-half of Congress. …

Sirens

“The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.”

If the state Legislature of Nevada appointed the state’s two senators, do you think Reid would be calling them cowards for not voting to outlaw brothels in rural counties as he demanded in a speech at the Legislature in 2011?

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"Burke said there were Three Estates in Parliament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority. It matters not what rank he has, what revenues or garnitures. the requisite thing is, that he have a tongue which others will listen to ... Democracy virtually extant will insist on becoming palpably extant."